Wednesday 27 June 2012

The Guiding Principles for Effective Reform of the House of Lords

With the Coalition Government tabling its House of Lords reform bill later today, proposing a mainly elected upper chamber of 450 senators, each serving a non-renewable term of 15 years, a dramatic transformation of the House of Lords may be upon us; but we should be mindful that the Lords is Britain's greatest political survivor, the political long grass littered with countless proposals for its reform.

Something certainly needs to be done. For all its value, the House of Lords has become unmanageably large. With the addition of 111 new peers in the six months following the last general election  -- compared with 205 appointments during the entirety of the Thatcher government, the number of peers entitled to sit in the House of Lords has swelled to 792; this makes Britain's upper house by far the largest of any democracy and, after China's, the second largest in the world. 

Fortunately, being unsalaried, our peers are extremely cost-effective. According to an article by Lord Norton on the House of Lords website, in 2006-2007 the total per capita cost of a peer was £108,000 a year against £682,000 for an MP. Nevertheless, given the size of the British population, the continued growth of the House of Lords is unsustainable and, in light of plans to reduce the size of the House of Commons, unjustifiable. A cap on total membership of the House of Lords needs to be set immediately with appointments of further peers suspended until mechanisms for retirement and resignation have been set in place.

Unfortunately the Government's bill fails to correctly identify the strengths and weaknesses of the upper chamber. One of the reasons Lords reform has failed thus far has been the inability of reformers to effectively demonstrate precisely how the introduction of an elected element will improve the performance of the upper house and the general quality of national governance. The quest for better government must be the guiding principle of any reform proposal. Unfortunately the Government's bill fails to do this.

Following the removal of all but 92 of the hereditary peers in 1999 (there is surely some irony that the 92 hereditary peers are the only democratically elected element in the upper house!), the House of Lords has become noticeably more confident and effective. With an increased sense of legitimacy, the Lords has defeated government legislation more than 500 times since 1999 and has become more insistent upon legislative amendment, which is good for democracy and for the quality of legislation. This rise may also be attributed to the lack of a single party majority in the upper chamber, with the Conservatives and Labour broadly equal and the Liberal Democrats and cross-benchers holding the balance of power. Given executive control over the House of Commons, the lack of a party majority in the House of Lords is a positive development which strengthens both Parliament and democracy. 

With a more diverse membership, including more women and ethnic minorities, a greater range of professional expertise and more opportunity for considered political minority dissent, the modern House of Lords is a far better microcosm of Britain than the House of Commons. Whilst the role of the House of Commons is to represent the people, I hold that the role of the modern House of Lords is to be representative of society. By so doing, it fulfils a democratic function and fills a democratic void that an elected House of Commons cannot (for example, the nature of political elections is such that women and ethnic minorities are always under-represented and minority dissent is sidelined).

Any attempt at reform must preserve the House of Lords' complementary relationship with the House of Commons and enable it to fulfil its primary functions of revising legislation, scrutinising the executive, and committee work and studies. Accepting that the House of Lords fulfils a different role to the House of Commons, it also follows that its members should meet a different set of criteria. Peers should complement MPs. Any reform of the composition of the House of Lords must maintain those features that have traditionally distinguished members of the upper house from the lower: independence, professional expertise, diversity and long-term perspective. Elections will make this difficult to achieve and the Government's bill completely fails to demonstrate how these will be preserved.

Whether due to a decline in the proper teaching of civics, increased exposure to American political and popular culture or the desire of politicians and the media to simplify complex concepts, the notion of “democracy” that is on the ascendant in modern Britain is nothing more than crude majoritarianism and poses a significant threat to our constitution, our political institutions and our system of government. 

In the context of Lords reform, advocates of this simplistic notion hold that the democratic legitimacy of all political institutions rests, exclusively, upon election and majority rule. Any institution which fails to meet both of these criteria will be held to lack legitimacy. This interpretation of democracy appears to have achieved dominance in the House of Commons, in the media and with a large portion of the public and is nowhere better illustrated than in calls for a House of Lords that is “wholly or predominantly elected” and therefore “more democratic and representative”.

Liberal democracy is a far more sophisticated and complex concept; it balances the interests of the majority against other important values, such as the protection of human rights, the promotion of social justice and equality, and respect for a variety of beliefs. These values, essentially moral in nature, have long enjoyed legal protection, enhanced through quasi-constitutional legislation and treaties such as the European Convention on Human Rights and the Human Rights Act 1998. In an advanced democracy these fundamental values will enjoy protection beyond the reach of the majority's will. 

In an important ruling in 1998, the Supreme Court of Canada identified four central tenets of the Canadian constitution, each of equal importance: democracy, constitutionalism and the rule of law, the protection of minorities and federalism. In the Canadian context all four tenets operate together, none in isolation and none trumping the others. As stated in the preamble to Canada's Constitution Act, 1867, Canada has “a constitution similar in principle to that of the United Kingdom”; consequently, with the exception of federalism, and applying the principles of common law by which rulings of Commonwealth courts may be regarded as persuasive, I hold that those same tenets can be deemed equally applicable to the United Kingdom.

The democratic process comprises many different elements including public debate, receipt of expert opinion and the consideration of opposing views. Parliament is far more democratic when it takes dissenting opinion into account. Liberal democracy supports the notion that consideration of political opposition is important. Unbridled majoritarian democracy, being averse to attempts to influence or restrict the will of the majority, is wary of opposition; and this results in an unsatisfactory democratic process yielding inferior results. The House of Lords is a far more comfortable home for political dissent and opposition than the House of Commons.

Accepting the more sophisticated definition of “democracy”, the House of Lords, as the pre-eminent defender of the constitution, the rule of law and human rights, and as the best-suited forum for political dissent, is undeniably democratic and is essential to our democratic system. This brings us to the issue of election. 

Election to the upper house is an acceptable procedure for a congressional system of government based upon the separation of powers but not necessarily for a parliamentary system of government in which the executive is subject to the confidence of the lower house only and in which the two houses are complementary rather than competitive (the upper house serving as a chamber for sober reflection and review). Elected peers would become little more than duplicates of their Commons colleagues, making it difficult to maintain the essential skills and qualities outlined above (independence, professional expertise, diversity and long-term perspective).

A wholly elected House of Lords would challenge the supremacy of the House of Commons enabling it to justifiably claim authority to hold the government to account and to represent the people. In the eyes of the public, this might endow Lords and Commons with equal legitimacy. The houses would cease to complement each other and would start to compete, with the Lords more likely to exercise its full powers. Put simply, two wholly elected chambers runs contrary to the correct operation of our parliamentary system and would require a complete re-evaluation of the function and purpose of the House of Lords.

Election would also weaken the independence of the peers and lead to greater partisanship. Although partisanship exists in the upper house, it is far less prevalent than in the lower house and it is not uncommon to find peers voting against their own party. If elected, and particularly if eligible for re-election, peers will be far more susceptible to pressures from the party Whip, independence would become jeopardized and the quality of work and debate would suffer.

Unfettered by party ties and holding the balance of power in the House, the crossbenchers are a defining feature (and symbol) of the independence of the House of Lords. Able to judge issues on their merits, without party-political constraint, crossbench contributions to debates, legislative review and committee work is invaluable. Given the noticeable lack of independent Members of Parliament, it is highly probable that an elected House of Lords would lose the crossbenchers—the ultimate loser being British democracy.

Electoral systems do not favour women or ethnic minorities and it is therefore very likely that an elected House of Lords would be considerably more impenetrable to members of these groups than it is currently. Reformers must realise that attempts to “democratise” the House of Lords and make it more “representative” will transform it into a much more homogenous and far less representative institution. 

Elections will also deprive Parliament of many of its most learned and respected members. The majority of the eminent scholars, doctors, scientists, social workers, educators, economists, businessmen, musicians and writers who have been elevated to the Lords are not the sort of people who are likely to stand for election. This priceless pool of talent and experience, so critically important to the work of the upper house, will be lost. The only major group likely to remain would be seasoned politicians with election experience.

Elections would impact upon the quality of the Lords' work in other ways too. The work of the Lords in legislative review, executive scrutiny, committee work and investigative studies is unquestionably superior to that of the Commons. This is due not only to the expertise of the peers, many of whom, as noted, are experts in their particular field, but because, freed from the constituency duties and electioneering work that dominates the lives of MPs, peers are able to devote far more time to serious and in-depth study of legislation and policy issues. The length of their period in the House of Lords also enables peers to develop considerable parliamentary and committee experience and affords them a long-term perspective denied to MPs, who tend to have short terms of office and a high turnover rate. 

In short, a wholly or predominantly elected House of Lords would destroy the complementary relationship between the two Houses of Parliament, with the House of Lords able to claim equal right to public representation; it would also lead to a rise in partisanship and increased control by the party machines, a reduction of the institution's independence resulting from the inevitable loss of independent crossbenchers, a reduction in the quality and depth of legislative revision and committee work due to the burden of constituency duties, a severe reduction in the broad range of professional expertise through the departure of many eminent leaders from a wide variety of professions, and it would cause a decline in the diverse range of opinions from a likely reduction in the number of women and ethnic minorities. This is bad for democracy. It is difficult to ascertain precisely how elections would make the house more “representative” or how they would fulfil what must be the primary purpose of reform: to improve the governance of Britain.

Of course this discussion may prove entirely academic. Reform proposals come and go. The Lords remains. Whether the Coalition Government's reform bill will succeed where so many others have failed we cannot know. If history is any guide, we may be debating the future of their Noble Lordships for some time to come.